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Teaching Constitutional Law, Administrative Law, and Health Law as Presidential Administrations Change
Get PDFWhen elections bring about changes in the political party of the president, the shifts frequently involve a change in the philosophies that inform the approach to governing. In teaching constitutional law, administrative law, and health law, this author cautions students to consider the political content of agency actions underlying the judicial opinions studied. Examining the political and discretionary judgment government officials exercise may provide an explanation for the results or an analysis when the law does not seem to account for the agency action or court decision. This Article examines the opportunities available to an incoming administration to undo the work of its predecessor and the constraints the law imposes on the exercise of discretion. After surveying the increasing use of the Congressional Review Act to reverse the regulatory actions of a predecessor administration, Part I of the Article explores other administrative law tools available to halt or redirect regulatory actions with which an incoming administration disagrees. Part II examines some of the signature cases involving judicial review of agency action to illustrate the constraints courts may impose on changes in administrative policy. Parts III, IV, and V examine how courts have dealt with policy changes in federal health care programs and the potential impact of changes in the presidential approach to the appointment of administrative adjudicators. The Article closes with some reflections on how this author’s experiences working in state and federal government have informed her view of government decision-making
The Assault on Critical Race Theory as Pretext for Populist Backlash on Higher Education
Get PDFThe rightwing is carrying out its most recent effort to install an authoritarian regime in America, which has been boosted by Donald Trump’s white supremacist rhetoric and actions before, during, and after his four years holding the Office of the President of the United States. Resolute in the effort to destabilize American Democracy by forcing on to the populist, among other messages, “The Big Lie,” the rightwing is committed to a coordinated strategy of attacking and delegitimizing democratic institutions for the purpose of retaining economic and political power.
The attack on Critical Race Theory (“CRT”) is one element of the strategy to assault liberal democracy that has caught fire. Though CRT is in the crosshairs, higher education institutions represent the larger target, because they are the places and spaces where critical thinking, public discourse, and reasoned debate are practiced in furtherance of liberal, democratic ideals. Thus, the targeting of CRT is intended to chill specific speech representing various perspectives and viewpoints that critique the dominant white hierarchy. The objective of the rightwing assault is to propagate unreality, division, and fear to thwart the outcomes of a liberal democracy—equality, multiculturalism, and intellectualism.
The attacks on CRT are only one in a salvo of new and growing incursions on conveying truth in educational spaces. The intention is to whitewash America’s history of racism and racial oppression, while at the same time eliminating the critical roles that dissent and contestation play in strengthening the “democratic health of [American] society.” The unjustified barrage on CRT is a pretext for the erosion of freedom of thought and inquiry in our higher education institutions. Higher education institutions have the resources to archive truth, intellectual inquiry, dissent, and contestation and, therefore, must be out front in the battle for the hearts and minds of the next generation of critical thinkers.
This Essay discusses one approach for understanding the scope of CRT, explains why attacks on CRT are undemocratic, and concludes by suggesting how higher education institutions should respond to the attacks on CRT
Myles Away from Perfect: The Potential Impact on NIL Deals following LSU Quarterback’s Retirement
Get PDFJust prior to the 2022 College Football Season, Louisiana State University Quarterback Myles Brennan decided to abruptly retire from football. Despite the unexpected finish to his career, Brennan is still going to likely retain all of the money he received in endorsements that were paid through the newly approved “NIL” deals available to collegiate athletes, as a result of a stipulation that these deals cannot be “performance-based”. In this article, Brian Ahle evaluates the potential ways in which endorsers may be able to protect their investments, while still complying with the NIL Policies that provide protections towards the athletes.https://scholarship.law.slu.edu/lawjournalonline/1100/thumbnail.jp
Revisiting Health Care Fraud in the Biden Administration
Get PDFAlthough not one of the Biden administration’s initial priorities, health care fraud inevitably will be a major concern. First, the federal government’s response to the COVID-19 pandemic—including the disbursement of more than $175 billion in provider relief funds and the loosening of traditionally strict rules on Medicare reimbursement for telehealth services—has created new opportunities to divert health care funds for fraudulent purposes. Second, President Joseph Biden took office in the midst of the incomplete transition from volume-based to value-based payment in the federal health care programs, which will allow fraud to flourish in the gaps between multiple reimbursement systems. Third, regardless of these developments, prior forms of fraud are likely to continue. Thus, the Biden administration will have no choice but to devote significant resources to fraud enforcement
What COVID-19 Laid Bare: Adventures in Workers’ Compensation Causation
Get PDFThis essay performs a close analysis of workers’ compensation coverage of COVID-19 and arrives at the conclusion that it should not be “impossible” to prove in a legal sense that an employee’s COVID-19 was caused by work. Scientific proof is not the same as legal proof: workers’ compensation law has never required that claims must be supported by irrefutable scientific proof of workplace causation. Yet repeatedly one heard this suggestion during public discussion on workers’ compensation coverage of employees.
Still, there is good evidence that even when workers’ compensation undisputedly covers work-related disease employers seldom pay benefits (and states do not compel them to do so). This is one reality that COVID laid bare: the workers’ compensation system rigidly resists paying occupational disease claims. The essay also explores a news account from Minnesota stating that nine hundred and thirty-five of nine hundred and thirty-five workers’ compensation COVID-19-related claims from meatpacking employees had not been paid as of February 2021. There was no shortage of other stories during the pandemic of mass denial of workers’ compensation claims in the meatpacking industry, a development having a disparate impact on communities of color, where more than half of all meatpacking employees are Latinx. These unpaid claim numbers suggest that something was “wrong” with causation analyses lower down in the administrative system.
Another truth COVID laid bare is that, aside from workers’ compensation, there is no nationwide short-term disability program in the United States. This leads to the conclusion that, if workers’ compensation insists upon super-strict versions of causation to cover claims, a different method of compensating short-term disability during pandemics or other “environmental” crises may become necessary. The conclusion seems almost inescapable because public health experts like Dr. Fauci are warning that we remain at risk for “new disease emergences” for the “foreseeable future.
Judicial Ethics May Decide Whether a Prisoner Can Be Touched As He Is Executed
Get PDFThe community having faith in the judiciary is vital for the U.S. to function as a democracy. Recently, the Court has become seemingly more politicized, even though Americans prefer an apolitical court. In this article, Mikayla Lewison argues that personal interests of the justices on the Court have likely played a role in whether or not prisoners, like John Henry Ramirez, may have a cleric of their choice inside the chamber as they are executed.https://scholarship.law.slu.edu/lawjournalonline/1084/thumbnail.jp
What’s in the Forecast for the SPAC Boom & the PSLRA?
Get PDFSpecial Purpose Acquisition Companies (SPACs) have exploded in popularity. These so-called “blank check” companies are used as vehicles to take companies public without going through a traditional IPO process. Financial projections in SPACs are currently protected by the safe harbor for forward-looking statements afforded by the Private Securities Litigation Reform Act (PSLRA). In this article, Nick Krone examines whether SPACs should be protected by the PSLRA.https://scholarship.law.slu.edu/lawjournalonline/1086/thumbnail.jp